Unfair dismissal and drug use by employees

Employers take a hard line on dismissing employees for drug use during work hours. Although it is recommended that employers have in place and follow zero drug use policies in order to prevent unfair dismissal claims, the Fair Work Commission has upheld terminations of employment even where no such policies existed, and even where employees have been denied procedural fairness.

This is usually due to the serious nature of the employee conduct.

Procedural fairness, a stipulation of unlawful termination laws, entails putting any allegations or accusations of misconduct to an employee before their employment is terminated, and allowing them to respond to those allegations.

In a recent case, Albert v Alice Springs Town Council, it was held that a council worker was fairly dismissed despite the fact that his employer did not give him the opportunity to respond to drug test results. The worker was involved in a car accident during work hours while he was driving a council truck. The truck was hit by someone who failed to give way at an intersection. After the accident the worker was required to undergo a urine test which found THC levels in his system that were 73 times higher than the council’s cut-off levels. He was dismissed summarily as the council argued that the extremely high levels of THC meant that he posed a danger to himself, the public and other employees.

The employee made a claim for unfair dismissal on the basis that he had not been allowed to see the results of his drug test, and had not been given the relevant paperwork when taking the urine test. The Commission held that even though this had not been done, and the employee had in fact been denied procedural fairness, the termination of his employment was still valid. This was because of the seriousness of his conduct, and the fact that safety was critical in his job.

The Commission found that even if the worker was given procedural fairness, the outcome would have been the same because of the extremely high levels of THC. Therefore, his unfair dismissal claim failed.

While this is an example of where the employer was not required to provide procedural fairness, it is a rare example. The conduct would usually have to be very serious for this to happen, and it is recommended that employers always provide employees with procedural fairness as a matter of good practice, even where there has been serious misconduct by an employee.  This means putting allegations and evidence to employees, and giving them an adequate opportunity to respond to those allegations.

Employers should also have in place clear drug and alcohol policies which specify what will happen to employees if they return a positive test result.

Our unlawful termination lawyers Perthadvise that employees should know that when they engage in serious misconduct, especially relating to drug and alcohol use, employers can summarily dismiss them for serious misconduct, and in some rare cases such as the above, do this without affording them proper procedural fairness.

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